Behavioral-Health Privilege in COT Screenings: Applying the Clements Attorney-Client Framework and Objective-Reasonableness Limits

I. Introduction

In re: MH2023-004502 is an Arizona Supreme Court decision arising from the State’s statutory process for involuntary mental-health evaluation and treatment. After A.R. was brought to a hospital in May 2023, a licensed social worker, M.G., conducted a brief crisis assessment to determine an appropriate level of care and whether to seek a court-ordered evaluation under Arizona’s Title 36 framework. M.G. warned A.R. at the outset that their conversation could be disclosed because it might lead to court proceedings (including a petition for court-ordered treatment (“COT”)).

When a COT petition was later heard, M.G. testified as one of the two “acquaintance witnesses” contemplated by A.R.S. § 36-539(B). A.R. moved to preclude her testimony, arguing that M.G. was his behavioral-health provider during the assessment and that A.R.S. § 32-3283(A) (behavioral health professional-client privilege/confidentiality) barred M.G. from disclosing information absent waiver or an exception.

The court of appeals (split) vacated the COT order, finding the communications privileged and confidential. The Arizona Supreme Court granted review. Although the COT order expired during the appeal (mootness concerns), the Court reached the merits under the “recurring yet evading review” rationale.

Key issues: (1) whether M.G. could qualify as an “acquaintance witness” under § 36-539(B) despite her screening role (ultimately not decided as moot given a 2025 statutory amendment and expiration of the order); and (2) whether the encounter created a “behavioral health professional-client relationship” under § 32-3283(A), thereby triggering privilege/confidentiality and precluding testimony.

II. Summary of the Opinion

The Arizona Supreme Court vacated the court of appeals’ opinion and affirmed the superior court’s ruling allowing M.G.’s testimony. The Court held that A.R. and M.G. did not have a confidential “behavioral health professional-client relationship” within the meaning of A.R.S. § 32-3283(A). Because the privilege presupposes such a relationship, § 32-3283(A) did not bar M.G. from testifying about information obtained during her one-time crisis screening—particularly where A.R. did not seek her services, there was no prior relationship, the interaction was limited and evaluative, and M.G. gave an explicit warning that the discussion was not confidential for purposes of possible involuntary-treatment proceedings.

The Court declined to decide whether M.G. could serve as an “acquaintance witness” under § 36-539(B) because (a) the Legislature amended § 36-539(B) in 2025 to clarify that licensed professionals may testify as acquaintance witnesses in the relevant circumstances, and (b) the specific treatment order had expired.

III. Analysis

A. Precedents Cited

1. Mootness and discretionary review

  • In re Pima Cnty. Mental Health No. 20200860221, 255 Ariz. 519 (2023): Used to justify reaching the merits despite mootness when issues are of great public importance or likely to recur yet evade review.
  • Fraternal Ord. of Police Lodge 2 v. Phx. Emp. Rels. Bd., 133 Ariz. 126 (1982): Quoted for the discretionary exception to mootness for recurring/public-importance issues.

2. Statutory interpretation methodology

  • State v. Zeitner, 246 Ariz. 161 (2019): De novo review of statutory interpretation.
  • Franklin v. CSAA Gen. Ins. Co., 255 Ariz. 409 (2023): Interpretation begins with statutory text.
  • Nicaise v. Sundaram, 245 Ariz. 566 (2019): Statutory language interpreted in context and alongside related statutes.
  • In re Drummond, 257 Ariz. 15 (2024): Plain, unambiguous statutory language is dispositive.

3. Privilege framework and analogies to the attorney-client relationship

  • Clements v. Bernini, 249 Ariz. 434 (2020): Central authority supplying the multi-element framework for determining whether a communication is privileged in the attorney-client context; adopted here because § 32-3283(A) makes the behavioral-health relationship “the same as” attorney-client.
  • Alexander v. Superior Court, 141 Ariz. 157 (1984): Cited through Clements for examining “nature of work performed” and “circumstances under which the confidences were divulged” when deciding whether a privileged relationship exists.
  • State v. Fodor, 179 Ariz. 442 (App. 1994): Quoted (via Clements) for focusing on whether the person believed they were approaching a professional in that capacity and intended to secure services.
  • Paradigm Ins. Co. v. Langerman L. Offs., P.A., 200 Ariz. 146 (2001), quoting In re Neville, 147 Ariz. 106 (1985): Used to emphasize that a subjective belief must also be objectively reasonable in determining whether a protected relationship exists.
  • Foulke v. Knuck, 162 Ariz. 517 (App. 1989): Cited for the caution that brevity alone does not defeat formation of an attorney-client relationship—supporting the Court’s point that factors like warnings/length are relevant but not necessarily dispositive.

4. Title 36 mental-health privilege cases in the court of appeals

  • In re MH2019-004895, 249 Ariz. 283 (App. 2020): Example where privilege did apply—because a pre-existing confidential therapeutic relationship existed and there was no warning that interactions fell outside that relationship.
  • In re MH2020-004882, 251 Ariz. 584 (App. 2021): Example where privilege did not apply—one-time screening interactions to assess danger with warnings that certain statements were not confidential.

5. Foundational privilege principles and due process backdrop

  • Samaritan Found. v. Goodfarb, 176 Ariz. 497 (1993): Cited for the foundational proposition that there must be a relationship before privilege exists.
  • Addington v. Texas, 441 U.S. 418 (1979): Reaffirmed that civil commitment implicates significant liberty interests requiring due process protection.
  • In re MH-2008-000867, 225 Ariz. 178 (2010): Arizona due-process sensitivity in COT proceedings.

B. Legal Reasoning

  1. The Court separated the “acquaintance witness” question from the privilege question.

    The Court noted that § 36-539(B) was amended on March 31, 2025 to clarify that witnesses may testify “regardless of the witnesses’ professional licensure” if they observed or were acquainted with the patient before the current application or, if after, were not “formal participants” in the evaluation process. Because the treatment order expired and the statute had been clarified, the Court declined to resolve that issue as moot.

  2. Privilege under § 32-3283(A) “presupposes” a confidential relationship and must be analyzed like attorney-client privilege.

    Section 32-3283(A) bars divulging information “received by reason of the confidential nature of the behavioral health professional-client relationship” and expressly equates that relationship to attorney-client. The Court therefore held that the threshold inquiry is whether the relationship exists, using the same analytical approach a court would apply to attorney-client privilege disputes.

  3. The Court rejected reliance on definitional “client” language in § 32-3251 as dispositive of privilege.

    The court of appeals majority had treated the definitional chain (licensed social worker → “behavioral health services” → recipient is a “client”) as establishing the privileged relationship. The Supreme Court held that this was “misplaced” because § 32-3283(A) requires a determination of a confidential relationship—an inquiry shaped by the attorney-client analogue, not merely by professional licensure and service labels.

  4. Applying Clements v. Bernini, A.R. failed the first (relationship) element.

    Under Clements v. Bernini, the party claiming privilege must make a prima facie showing, including that: (1) a relationship existed; (2) communication was made to secure/provide services; (3) it was made in confidence; and (4) it was treated as confidential. The Court resolved the case at element (1): no objectively reasonable basis to believe a confidential professional-client relationship existed in this screening context.

  5. Objective reasonableness turned on circumstances: one-time screening, purpose, warnings, no prior relationship, and lack of patient-initiated consultation.

    The Court found A.R. did not seek out M.G., was at the hospital involuntarily, had no pre-existing relationship with M.G., and the interaction was a single brief assessment to determine whether further evaluation should be sought. Critically, M.G. warned A.R. that the conversation could be disclosed in connection with a petition for evaluation and COT.

    The Court treated In re MH2020-004882 as the closest analogue: one-time risk/need screening with warnings → no confidential relationship. By contrast, In re MH2019-004895 involved a pre-existing confidential relationship and no warning carving the interaction out of confidentiality → privilege applied there.

  6. Because no confidential relationship existed, the Court did not reach waiver, exceptions, or the remaining Clements factors.

    Without the relationship predicate, § 32-3283(A) did not apply at all; thus there was no need to decide whether A.R. waived anything or whether an exception permitted disclosure.

C. Impact

  • Clarifies the privilege boundary for crisis screening in Title 36 matters.

    The decision establishes that not every interaction with a licensed behavioral-health professional triggers § 32-3283(A). Where the encounter is a one-time screening tied to potential involuntary proceedings—especially with an up-front warning of non-confidentiality—courts may find no protected professional-client relationship exists.

  • Imports an attorney-client privilege framework into behavioral-health privilege disputes.

    By explicitly applying Clements v. Bernini to § 32-3283(A), the Court provides a structured test that future litigants and trial courts can use to litigate privilege questions with greater consistency (relationship; purpose; confidentiality; treatment as confidential).

  • Encourages clear warnings and role-definition in emergency/involuntary settings.

    The Court’s analysis makes “pre-discussion warnings” and the “nature of the interaction” highly salient to objective reasonableness. Providers and agencies will likely standardize advisements to clarify that screening communications may be used in petitions and hearings.

  • Interacts with the 2025 amendment to § 36-539(B).

    Although the Court did not decide the acquaintance-witness issue, the opinion highlights that the Legislature has now addressed who may serve as an acquaintance witness. Future disputes are more likely to pivot to privilege/role questions (as here) rather than licensure-based categorical exclusions.

  • Due process remains a limiting principle.

    The Court acknowledged (citing Addington v. Texas and In re MH-2008-000867) that involuntary commitment is a major deprivation of liberty. It cautioned that factors like warning/length are relevant but not necessarily dispositive, signaling that trial courts must evaluate total circumstances rather than apply rigid checklists.

IV. Complex Concepts Simplified

Court-ordered treatment (COT)
A civil process where the State seeks a court order requiring a person to receive inpatient or outpatient mental-health treatment under Title 36 after evaluations and a hearing.
“Acquaintance witnesses” under A.R.S. § 36-539(B)
Lay-type witnesses who observed or were acquainted with the patient around the relevant time and testify to observed facts (not expert opinions). Their testimony is one of the statutory evidentiary requirements at a COT hearing.
Behavioral health professional-client privilege (A.R.S. § 32-3283(A))
A rule restricting licensed behavioral-health professionals from disclosing information obtained because of a confidential professional-client relationship—unless the client waives the privilege as the statute requires.
Privilege vs. confidentiality
“Confidentiality” is a general duty not to disclose; “privilege” is an evidentiary rule that can prevent testimony in legal proceedings. Section 32-3283(A) blends these concepts by defining a privileged confidential relationship and barring disclosure absent waiver.
Objective reasonableness
Even if a person subjectively believes they are speaking in a protected professional relationship, the belief must be reasonable under the circumstances (who initiated contact, the purpose of the interaction, warnings given, and the role being played).
The Clements framework
A multi-factor test for whether a communication is privileged, placing the initial burden on the party asserting privilege to show (among other things) that a protected relationship existed and that the communication was made and treated as confidential.

V. Conclusion

In re: MH2023-004502 establishes a practical and legally anchored rule for Title 36 proceedings: § 32-3283(A) does not automatically cloak crisis screening communications with privilege simply because the interviewer is licensed. Because § 32-3283(A) equates the behavioral-health relationship to attorney-client, courts must first determine—using an attorney-client privilege framework like Clements v. Bernini—whether a confidential professional-client relationship existed, including whether the patient’s belief in such a relationship was objectively reasonable.

On these facts, a one-time, evaluative screening initiated by the system (not the patient), coupled with a clear warning that statements could be disclosed in involuntary-treatment proceedings, did not create a confidential behavioral health professional-client relationship. The decision therefore strengthens the State’s ability to present necessary fact testimony in COT hearings while preserving privilege for true therapeutic/confidential relationships, and it supplies a structured test to resolve recurring privilege disputes in Arizona’s involuntary-treatment docket.